' This revision has arisen out of judgment and decree dated 5-2-1976 passed by the 1st Additional District Judge, Larkana, in Civil Appeal No,14 of 1975 allowing the appeal filed by the respondent No,l.
' The facts which give rise to this appeal are that the applicant/ plaintiff filed a suit for specific performance of contract about the agricultural lands bearing survey numbers 603/1 measuring 5- 16 Acres, 603/2 measuring 1-35 Acres, and 606/A measuring 4-21 Acres totaling 11-32 Acres in Deh Bukejani, Taluka Warah, District Larkana, against the defendants/opponents averring that this land was transferred to opponent No,2 whose husband and attorney the opponent No,3, agreed to sell the land to applicant/plaintiff for Rs,300 per Acre and received part consideration of Rs,2,000 in cash and in the part performance agreement dated 27-8-1967 handed over the vacant possession of the suit land to the applicant/plaintiff. It was stipulated that the balance of sale consideration was to be paid in Rabi season in 1967-68.
2. That the applicant/plaintiff contacted him for several times to get the sale-deed registered but he kept him on promises. He was always ready and prepared to make payment of part consideration. Later.it was learnt by him that 0.56 paisas share of survey number 603/2 measuring 1-02 Acres had been sold by respondent No,4 as attorney of respondents Nos.2 and 3 defendants to opponent No,1.
3. The plaintiff/applicant filed a suit being Suit No,42 of 1973 for specific performance against the defendants/respondents. The opponents Nos. 2 and 3/defendants Nos. 1 and 2 filed their written statement and contested the suit on the main ground that in the agreement of sale it was stipulated that the balance of sale consideration was to be paid to Rabi season 1967-68 but the applicant/plaintiff failed to do so as such the question of specific performance did not arise.
4. That the opponent No,1/defendant No,3 filed his written statement and contested the suit and so was done by respondent No,4/defendant No,9. The trial Court framed 8 Issues. The plaintiff/applicant examined himself, produced agreement, examined Sohrab Wacha an attorney of opponent No,2/defendant No,1 and Muhammad Arif, Hari of applicant, who produced true copy of suit filed against him by opponent No,l. defendants Nos.2 and 3 did not participate in the proceedings and they and their lawyers remained absent. Opponent No,1/defendant No,3 examined himself and produced sale-deed. Opponent No,4/defendant No,4 did not participate.
The learned Civil Judge/trial Court after recording the evidence and hearing the arguments of the learned counsel for the parties, gave findings on Issue No,1 that the part consideration was payable by applicant/plaintiff at the time of registration of sale-deed. On Issue No,2 the plaintiff/applicant was always ready to perform his part of contract and his suit had not become time-barred; on Issue No,3 the plaintiff/applicant was contacting the defendants Nos. 1 and 2; on Issue No,9 the rights of opponent No,1 Haji Khudadad were subject to rights created in favour of plaintiff/applicant; on Issue No,5 that intention of parties was that balance of consideration was payable at the time of registration of sale-deed and passed judgment and decree, applicant/plaintiff's suit was decreed to the extent of remaining area of land and that plaintiff/applicant may file a separate suit for recovery of balance amount.. The opponent No,1 filed appeal being Civil Appeal No,14/1975 against the judgment and decree in the Court of the District Judge, Larkana, which was finally heard by the learned 1st Additional District Judge, Larkana, who was pleaded to allow the appeal and dismissed the suit with costs by his judgment dated 5-2- 1976.
' The applicant/plaintiff being aggrieved by the aforesaid impugned judgment dated 5-2-1976 has preferred this revision on the grounds mentioned in the Memo of Revision.
5. I have heard at length Mr. Abdul Fateh Memon, learned counsel for the applicant Mr.Khuda Bux Umrani, learned counsel for the respondent No,1.
6. The payment of balance amount of consideration, in my opinion has been overlooked by the learned 1st Additional District Judge, and as well as by the learned counsel for the parties. It is an admitted position that the respondents Nos. 2 and 3 had to surrender agricultural land after surrendering of the excess area only one acre and 2 Ghuntas of Survey number 603/2 remained with her. From the record it is clear that the respondent No,2 had only one Acre and 2 Ghuntas with her and the rest was surrendered to the Settlement authorities. It is also clear from the record that the plaintiff/applicant had already paid Rs,2,000 towards sale consideration for the entire agricultural land. In these circumstances I am of the view that the plaintiff/applicant has not to pay anything towards the sale consideration but has over paid the amount and on the contrary he has to recover some payments from the respondent No,2. The issue No,1 was wrongly decided by the learned Court below.
7. It has been argued by the learned counsel for the applicant/ plaintiff that the learned Court below ought to have held that the suit was not barred by limitation Act. The relevant provision is Article 113 which says that for specific performance of contract, the period for limitation is for three years from the date fixed for specific performance or if no such date is fixed when the plaintiff has noticed that performance is refused. In the instant case the plaintiff/applicant has averred in para.3 of the plaint that he repeatedly contacted several times the defendant No,2, the attorney defendant No,1 but he was keeping him on promises. In his deposition he stated that he went to S.B.Vacha for 2-3 times for the registration of the sale-deed as Mr.Vacha was managing the lands on behalf of defendants Nos. 1 and 2. He kept him on promises that the record was under preparation and sale-deed would be executed after preparation of the record. He had also gone to defendant No,2 at Karachi, who gave him chit to defendant Abdul Majeed who was administering the property of defendants Nos.1 and 2. About 12 months back he learnt that one Acre and two Ghuntas out of survey number 603/2 was sold out to defendant/respondent No,l. He was not cross- examined by the defendants Nos.1 and 2. According to Article 113 of Limitation Act. The limitation for specific performance of contract started when the plaintiff has notice that performance is refused.
The words 'notice' means intimation, information, cognizance or observance. 'Notice' implies knowledge and this knowledge comes from direct perception or from inference reasonably arising out of several facts and circumstances. The finding of the learned lower Court is that the period of limitation began to run from the end of the Rabi season of 1967-68 when the balance of the sale price was to be paid and therefore, the suit could have been filed at the latest by the end of Rabi season of 1970-71 and since it was filed in 1973, it is barred by time. The evidence of plaintiff/applicant about demand made to the defendant No,2 and Mr.Wacha is consistent with the case pleaded in para.3 of the plaint. The respondent No,1 filed suit for possession against the Hari that the respondents No,2 executed sale-deed in favour of respondent No,1 as such the plaintiff came to know about the sale-deed. I hold that the learned 1st Additional District Judge has failed to read the material and substantial evidence in the facts and circum stances of this case and apply the correct principles laid down in Article 113 of the Limitation Act. He ought to have held that the instant suit was not barred by limitation.
8. The learned trial Judge did not find any lathes on the part of A the plaintiff/applicant. The learned 1st Additional District Judge observed that as the plaintiff/applicant had not performed his part of the contract, as such he is not entitled to the relief. In Pakistan mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief.
' During the course of arguments Mr. Abdul Fateh Memon, learned counsel for applicant has moved an application under Order VI, rule 17 for adding a prayer after clause 1: This application was not opposed by the respondent No,1 but on the contrary he has endorsed his no objection on this application. The powers of a Court to allow amendment of pleadings are given under Order VI, rule 17 of the Code of Civil Procedure. No limitations are placed on the powers of a Court to allow amendment of the pleadings of any party. Mr. Abdul Fateh Memon, the B learned counsel for the applicant has referred me to PLD 1963 SC 191, 1974 SCMR 131 and 1980 SCMR 871.
9. I have gone through decisions. I am in total agreement with the broad principles of law enunciated in the aforementioned eases that powers of the amendment conferred by the Code are very wide and amendment can be allowed even in the Supreme Court. In view of this I allow the amendment application by consent of the parties.
10. In the special circumstances of the parties, the impugned judgment and decree of the learned Courts below stand set aside. The Suit No,42 of 1973 is remanded to the Court of Civil Judge, Warah.
The plaintiff is allowed to file amended plaint and the parties be given fair and full opportunity to file additional pleadings and lead evidence thereon. But I make it clear that the Issues cannot be canvassed over again. I keep open for enquiry only on Issue whether the sale-deed executed in favour of respondent No,1 is likely to be cancelled? If so, what is its effect?
' With these observations, I allow the Revision Application No,91 of 1976 as indicated above and direct the parties to bear their respective costs.